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District Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Joseph Barry SHELTON and Margie Victorian, Defendants and Appellants.

Cr. 8672.

Decided: September 06, 1963

Boags & Worrell, Los Angeles, for appellants. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Lawrence R. Tapper, Deputy Atty. Gen., for respondent.

Appellants Shelton and Victorian were charged with possession of heroin in violation of section 11500 of the Health and Safety Code. Defendant Shelton was further charged with prior felony convictions, one of them being the possession of marijuana. Victorian was charged with two prior felony convictions. The trial was to the court. The trial court found both defendants guilty and all charges of priors as to Shelton true and the charge against Victorian of a prior conviction of grand theft true but the other prior untrue. Shelton was sentenced to the state prison and Victorian granted probation. The defendants appeal from the judgments and from the order denying them a new trial. The evidence, resolving all conflicts in favor of the People is as follows: On the evening of March 21, 1962 the defendant went to an apartment house on West 87th Street in the City of Los Angeles and there rented an apartment as Mr. and Mrs. Jone, for a period of one month commencing on March 23rd. Shelton paid $110 toward the monthly rental and the manager gave him a receipt and a key to the apartment. He permitted them to take immediate possession in return for their agreement to clean the apartment. The manager saw the defendants in the apartment between 3:00 and 4:00 o'clock on the morning of March 22nd.

Officers Hanks and Grennan were police officers assigned to the Narcotics Division. Hanks had been investigating Shelton for several years and during that investigation had received numerous reports from informants that Shelton was ‘a dealer in heroin.’ He also learned that Shelton had been convicted of a narcotic charge and twice arrested on narcotic charges but that convictions were not obtained upon those charges. He had often seen Shelton in ‘high frequency narcotic areas' and in February, 1962 had seen Shelton in conversation with a known heroin dealer. Officer Hanks had several times talked with one Eunice Baul. She had told him that Shelton was a dealer in heroin, that he purchased it in half and full ounce lots and that he kept her supplied with it. Officer Grennan also had similar conversations with Baul. Hanks had never made an arrest as a result of information received from Baul but he always found what she said to be consistent with independent information he possessed. Officer Grennan had used her information to obtain several convictions of narcotic offenders.

On March 22, 1962 Hanks, Grennan and two other officers went to an apartment house in southwest Los Angeles. Upon their arrival they showed the manager of the apartment house a ‘mug shot’ of Shelton and gave her a description of Baul. She advised the officers that Shelton and Baul were occupying Apartment No. 1. She told them that her husband had seen Shelton hide what he believed to be narcotics in the hallway and gave the officers two hypodermic needles enclosed in a plastic case which she said she had found in the hallway over the doorway to Apartment No. 1. The officers went to the apartment and stood in front of the door until it was opened. They then saw Baul, apparently leaving, and Shelton sitting inside the apartment. The officers entered the apartment through the open door and placed both defendants under arrest for violation of the State Narcotic Act. Shelton was searched and the officers found a rent receipt for an apartment No. 212 signed by ‘Willie Lindsey.’ They also found a key to Apartment No. 212. Shelton denied any knowledge of the receipt claiming that it had been given to him by Eunice. Eunice stated she had found the receipt in Shelton's car and told the officers “I know he isn't going to take me there. That's where he's got Margie.” When asked whether Shelton had any ‘junk’ there she replied: “He very well could. He could be using that as a stash pot for some junk.” The search of the apartment uncovered no narcotics or other contraband.

The officers located the apartment designated 212 on the rent receipt as being on West 87th Street and advised Shelton that they had and told him that they were going to take him over there to have the manager identify him. Shelton then admitted that he had rented that apartment the night before. The following conversation then occurred in the police car between Officer Hanks and Shelton: ‘I said, ‘Well, who is in there now, Joe?’ [Referring to the 87th Street apartment]. He says, ‘There is no one.’ I said, ‘Do you have any junk in there?’ He says, ‘No.’ I said, ‘How about if we go down and take a look?’ He says, ‘All right, go ahead.”1 The officers took Shelton to the 87th Street apartment. They knocked on the door and when there was an inquiry as to who was there from a woman in the apartment, they requested Shelton to answer saying it was he. He refused to do so and the officers announced themselves as such and demanded that the door be opened immediately. The door was opened by Victorian who stood in the doorway with a hypodermic needle attached to an eye dropper in her left hand.2 She was immediately placed under arrest. The apartment was searched with the result that the officers discovered in a shoe box, which had not been in the apartment at the time it was leased to the defendants, two balloons containing a white powder which was proven to be heroin. Victorian told the officers that Shelton had brought her the two balloons the night before. She refused to repeat this statement in front of Shelton and later denied to the officers that she had made it.

Appellant contends that the arrest of Shelton at the Western Avenue apartment was without probable cause, and that the court erred in admitting into evidence the hypodermic needle and the heroin over their objections.

The officers, before going to the apartment, had been advised that Shelton was a dealer in narcotics; that he had furnished narcotics to Baul; that he had often been seen ‘in high frequency narcotic areas' and had recently been seen in conversation with a known narcotics dealer; Baul had proven in other cases to be a reliable informant. They also knew that he had a narcotic conviction and two other narcotic arrests and that hypodermic needles had been found over the door of the apartment. When the door was opened and they saw Shelton in the company of Baul they had, on the basis of the information theretofore given them and particularly the information given by Baul that Shelton had supplied her with narcotics, reasonable cause to believe that a felony had been committed by Shelton.

The arrest being lawful the officers had as an incident to that arrest a right to search the Western Avenue apartment. This they did but the search did not disclose any contraband.

The arrest did not justify the search of the West 87th Street apartment. It was the duty of the officers if they desired to search that apartment to go before a magistrate and attempt to procure a search warrant (Castaneda v. Superior Court, 59 A.C. 456, 459, 460, 30 Cal.Rptr. 1, 380 P.2d 641), unless, as the People contend, appellant Shelton consented to a search of that apartment. If appellant did consent he waived his constitutional rights. The burden was upon the People to prove that appellant gave his consent to the search and that it was voluntarily given. (People v. Gorg, 45 Cal.2d 776, 782, 291 P.2d 469.)

‘Whether in a particular case an apparent consent was in fact voluntarily given or was in submission to an express or implied assertion of authority, is a question of fact to be determined in the light of all the circumstances.’ (People v. Michael, 45 Cal.2d 751, 753, 290 P.2d 852, 854.) “A circumstance of particular significance is a defendant's custody at the time of the request for his permission to search, for where he has submitted to arrest * * * he knows that he is virtually powerless to prevent the search.” (Castaneda v. Superior Court, supra, 59 A.C. 456, 460, 30 Cal.Rptr. 1, 3, 380 P.2d 641, 643; People v. Gorg, supra, 45 Cal.2d 776, 782, fn. 2, 291 P.2d 469.) The evidence here compels the conclusion that any consent given by Shelton for the search of the 87th Street apartment was not voluntarily given. At the time the consent was allegedly given, (and if Officer Hanks' original version of his conversation with defendant is the correct one, it is doubtful that any consent was given), appellant was in custody. After the alleged consent was given he was taken by three officers to the 87th Street apartment. There, when a response was made by the occupant of the apartment to their knock upon the door by the inquiry ‘who is there,’ appellant refused to identify himself and thus clearly negated any consent that the officers might enter. (Cf. Castaneda v. Superior Court, supra, 59 A.C. 456, 30 Cal.Rptr. 1, 380 P.2d 641.)

Apparently, however, the People's contention is that when the door was opened by appellant Victorian and the officers saw her in possession of a hypodermic needle, a misdemeanor was committed in their presence (Health and Safety Code, section 11555), and that they had the right to enter the apartment, place Victorian under arrest and, as an incident to that arrest, search that apartment. We cannot agree. While police officers have the right to seek interviews with suspects and call upon them at their homes for that purpose (People v. Torres, 56 Cal.2d 864, 867, 17 Cal.Rptr. 495, 366 P.2d 823), that is not the situation here. The purpose of the officers in going to the apartment was not to interview Victorian but, on the contrary, to make a search of the apartment which search was illegal and unwarranted in the absence of a free and voluntary consent thereto by Shelton which they did not have. When they announced that they were police officers and demanded immediate admittance they were not requesting an interview with the occupant of whom they knew nothing other than that probably her name was Margie, but were asserting their authority to enter. That this is true is emphasized by the fact that when Victorian asked them if they had a search warrant they announced that they needed none and proceeded with their search.

The efforts of the officers to gain entrance to the apartment by asserting their right to enter was a part of their search for the contraband they believed to be therein. Victorian, in opening the door in compliance with the demand of the officers, was not consenting to the search but only yielding to the assertion of the authority to enter which was implied in their announcement that they were officers of the law and their demand that the door be opened. (Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; United States v. Slusser, R.C., 270 F. 818; United States v. Smith, 2 Cir., 308 F.2d 657, 663.) ‘The right to seek interviews with suspects or witnesses at their homes does not include the right to walk in uninvited’ (People v. Haven, 59 A.C. 738, 742, 31 Cal.Rptr. 47, 50, 381 P.2d 927, 930; People v. Michael, supra, 45 Cal.2d 751, 753, 290 P.2d 852), nor does it give the right to assert authority to enter.

The People rely on People v. White, 180 Cal.App.2d 99, 4 Cal.Rptr. 261. That case is clearly distinguishable upon the facts. In White the officers, through on open door, saw what appeared to them to be contraband on the floor of the apartment and on a table therein but there the door had not been opened under any assertion made by them of a right to enter.3 The officers saw Victorian in possession of the hypodermic needle, not through any existing aperture but through the aperture which wa caused by the door being opened to them through their wrongful assertion of their authority to enter and in the course of their unlawful search.

Officers may look through an existing aperture and if they see contraband or a public offense being committed, may enter the premises. They may not drill a hole and use what they see through that hole as grounds for entry, arrest or search. (People v. Ruiz, 146 Cal.App.2d 630, 633, 304 P.2d 175; People v. Regalado, 193 Cal.App.2d 437, 442, 14 Cal.Rptr. 217.) We see no difference between drilling a hole in a door and causing it to be opened by wrongful assertion of authority. In either case the view obtained is the result of an unlawful invasion of the occupant's home. Here, the only basis for the arrest of Victorian and the search of the apartment where she was arrested is the view obtained by the officers of the hypodermic needle in her possession and that view was wrongfully obtained.

It follows that the court erred in admitting the hypodermic needle and the heroin into evidence and the judgments must be and are reversed. The purported appeal from the order denying motion for new trial is dismissed.


1.  This is Officer Hanks' second version of the conversation. On direct examination his testimony is as follows: ‘Q. ‘Well, how about if we go down and take a look?’ A. ‘No, it is all right.’

2.  Both appellants testified that when Victorian answered the door she was nude and had nothing in her hands.

3.  That this is a significant factual difference is clearly indicated in People v. Martin, 45 Cal.25 755, 761, 290 P.2d 855.

NOURSE, Justice pro tem.

SHINN, P. J., and FORD, J., concur.

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